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Does Unemployment Discrimination Happen?

If a recent LinkedIn conversation is any indication, how to avoid discriminating against the long-term unemployed—a topic Congress is now addressing—may be something of a minefield for HR professionals.

The conversation was started by Andrew Rodman, a partner in employment law at Miami-based Stearns Weaver Miller Weissler Alhadeff & Sitterson. In a February 2014 post on the Society for Human Resource Management’s LinkedIn page, he questioned whether companies really discriminate against the unemployed.

In his post, Rodman pointed to proposed legislation in Congress, the Fair Employment Opportunity Act of 2014, which would make it illegal to consider an applicant’s current or past status as unemployed in screening for or filling jobs. The bill would apply to employers with 15 or more workers and would also make it illegal to publish job postings stating that someone’s unemployment status disqualifies him or her from consideration.

Rodman’s question elicited dozens of responses from HR practitioners—perhaps none more controversial than the post from a woman who admitted that her hiring managers “will discriminate against these people and for good reason in many cases. They wonder why someone else has not picked them.”

“In all honesty, we discriminate against the long term unemployed at my office,” wrote the woman, who described herself as a contract HR manager for a large U.S. firm. “We just don’t announce it to everyone. It is done under the radar. In most cases when I talk to the long term unemployed, I can see why they have been out of work for a long time. They will appear beaten down and lack energy and confidence. In most cases their communications skills and ability to sell themselves is not as good as other candidates.

“In my opinion more of us should be honest and instead of saying they don't discriminate against the long term unemployed, they should admit they do and explain why.”

LinkedIn poster Ted Lazor, who described himself in a phone interview as an HR professional, urged the woman never to “admit to any discriminatory practices especially in social media of any kind.”

“You leave the company open for potential liability which I’m sure you don't want,” Tazor wrote, adding that “if the business condones this behavior then you have to be that key influencer to change the mindset in the organization, because this is a social network risk you’re taking.”

Responding to a request for an interview, the HR manager at the large U.S. firm wrote in an e-mail that she “made a mistake being so blunt and honest in a moment of weakness and would like to let my comments on this topic die.” She added in her e-mail, however, that she still believes that “MOST long term unemployed are in that situation for a very good reason—themselves.”

Beaten Down

There are more than 4 million Americans who have been out of work for six months or longer, according to the U.S. Department of Labor, which notes that nearly 40 percent of the total unemployed population is now long-term unemployed—a historic high.

Recruiters, HR and hiring managers typically identify potential red flags in resumes, including long gaps in employment, even though many of today’s long-term unemployed are out of work for reasons beyond their control.

Paul Neumann, a Charlotte, N.C., resident, lost his supervisor position at Adecco Staffing in December 2013, when the office was closed. He has a master’s in HR development, a Professional in Human Resources certification and nine years’ experience as a process manager at Excellus BlueCross BlueShield. He can relate to the LinkedIn poster's comment about the long-term unemployed appearing “beaten down.”

“People aren’t saying, ‘Oh, they were just a victim of circumstance,’ ” Neumann said in a phone interview. “They’re thinking, ‘Even if his company was downsized, if he was good, somebody would have picked him up by now.’ From what I see, a lot of the long-term unemployed are older people who were making a lot of money, and companies don’t want to hire older people because they’re more expensive and closer to retirement and might have outdated skills.”

Some states and municipalities already have laws prohibiting discrimination against unemployed applicants. In March 2013, New York City joined New Jersey, Oregon and the District of Columbia by passing a law prohibiting discrimination against the unemployed.

“When I heard of the [proposed federal] legislation, my first thought was, ‘Is this really a problem?’ ” Rodman said in a phone interview. “Are there really employers out there ignoring applicants who’ve been unemployed for a certain period of time? When I posted [the question] on LinkedIn, I started to get comments from several unemployed people who seemed to believe there is a good deal of discrimination.”

Even if the proposed legislation doesn’t pass, Title VII of the Civil Rights Act of 1964 already prohibits hiring decisions that create a “disparate impact” on a protected class of workers, Rodman pointed out. A company would be in violation of Title VII if it could be proved, for instance, that its policy against hiring the long-term unemployed disproportionately affected black applicants because they had a higher unemployment rate than nonblack job seekers.

But proving hiring bias can be tricky, as most employers—even if they have discriminated against a protected class of worker—can typically find other, legal reasons for rejecting a candidate. Experts said this will continue to be the case even if the congressional bill banning unemployment bias passes.

Tangible evidence of hiring discrimination is hard to come by, said Greg Moran, CEO of Chequed.com Inc., a consultant to HR managers, and instead is usually manifested in “offhand remarks in e-mails, tweets, IM chats and other more informal communications.

“Often, it comes down to subtle, unconscious issues that are rarely, if ever, intentional,” he said. “The reality is that most hiring processes are very unstructured and gut feeling plays the largest part in a hiring decision. Gut feeling is most often driven solely by how similar someone is to us.”

Interviewing Tips

If the federal bill passes, “that doesn’t mean employers should ignore that somebody’s unemployed when making hiring decisions,” Rodman said.

“It’s perfectly reasonable for an employer to look behind the reason for the unemployment,” he advised. “Was it the result of a layoff, where many others were let go for financial reasons? Or were they let go for performance reasons? Or maybe they voluntarily left their job. It would be perfectly legitimate for an employer to say, ‘I’m not hiring this person, who happens to be unemployed, because I learned it was because of poor performance at their previous job,’ even if there was a mass layoff.”

Experts also offered these tips:

Involve more than one person in the interviewing process.

Train recruiters on all aspects of bias.

Train recruiters to focus on the bona fide occupational and leadership requirements for a job, not on an applicant’s current or recent employment status.

​Work with local and regional organizations that can reach broad segments of the population that have the skills and experience you seek.